85 F.

3d 549

UNITED STATES of America, Plaintiff-Appellee,

v.
Francisco SANCHEZ-CORCINO, Defendant-Appellant.
No. 94-4363.

United States Court of Appeals,

Eleventh Circuit.
June 17, 1996.

Joaquin Mendez, Asst. Federal Public Defender, Miami, FL, Howard M.

Srebnick, Black, Srebnick & Kornspan, P.A., Miami, FL, for appellant.
Kendall Coffey, Goeffrey Brigham, Lisa A. Hirsch, Robert B. Cornel,
Linda Collins Hertz, U.S. Attys., Miami, FL, for appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS * , Senior
Circuit Judges.
PHILLIPS, Senior Circuit Judge:

After a jury trial, Francisco Sanchez-Corcino (Sanchez) was convicted of one

count of engaging in the business of dealing in firearms without a license, 18
U.S.C. 922(a)(1)(A) (Supp.1996), 924(a)(1)(D) (Supp.1996) (Count 1), and
of nine counts of making false statements with respect to information required
to be kept on file by licensed firearms dealers, 18 U.S.C. 924(a)(1)(A)
(Supp.1996) (Counts 2 through 10). Sanchez appeals his convictions on all
counts, as well as his sentence. As to Count 1, Sanchez claims that the district
court erred in failing to instruct the jury that, in order to find that Sanchez
"willfully" sold guns without a license, it had to conclude that Sanchez knew of
the licensing requirement he was accused of violating. Because we agree that
924(a)(1)(D)'s "willfulness" standard requires proof that the defendant knew of
the licensing requirement and, nonetheless, intentionally violated it, we reverse
Sanchez's conviction on Count 1 and remand it to the district court for a new

trial. We affirm all of Sanchez's other convictions and their accompanying

sentences.
I.
2

Between April and September of 1993, Sanchez bought more than 150
handguns from two licensed firearms dealers in Miami. He purchased the guns
in nine separate transactions, the first seven at Miami Police Supply Store, the
last two at 27th Avenue Pawn Shop.

Each time he bought guns, Sanchez filled out an Alcohol, Tobacco, and
Firearms (ATF) Form 4473. This form required Sanchez to give his name, date
of birth, and other basic personal information, including his "Residence
Address." On each form, Sanchez gave his correct name and biographical data,
and he listed his address as 236 N.W. 24th Avenue, Miami, Florida.

After having purchased seven sets of handguns at Miami Police Supply Store,
Sanchez began patronizing 27th Avenue Pawn, where, on his first visit, he
bought twenty more guns. In connection with this sale, the store owner
completed and sent to the ATF a "multiple gun purchase" form, which the ATF
requires licensed sellers to complete whenever they sell more than one firearm
in a single transaction. An ATF agent later called the owner and asked him to
notify the ATF if Sanchez returned to the store. When Sanchez did return, he
ordered thirteen more guns, and the owner, as promised, notified the ATF. ATF
Agent Foster then set up surveillance outside the store. A few days later,
Sanchez returned and picked up the thirteen guns; Agent Foster then arrested
him.

The men drove to the ATF station where, after having been properly advised of
his rights, Sanchez told ATF agents about his weapons activity. He then signed
a written statement in which he admitted having purchased and resold at least
140 handguns. Also in this statement, Sanchez explained that he had begun
buying guns for resale because he was unemployed and needed money. In
describing his sales activities, Sanchez explained that he did not purchase the
guns with specific buyers in mind, but that after he bought the guns, potential
buyers would contact him via his beeper. He then would meet the buyers,
whom he identified only as "latin males," in Miami's "Little Havana" district,
where he would sell them the guns.

As to the address he used on the 4473 Forms, Sanchez explained that, although
he had not lived at 236 N.W. 24th Avenue for about eight months, he had given

that as his address for two reasons. First, it was the address on the Florida
identification card he presented when he made the purchases, and, second, he
had not yet established another permanent address.
7

A few days after the arrest, a grand jury returned a ten-count indictment against
Sanchez. Count 1 charged him with engaging in the business of selling firearms
without a license, a violation of 18 U.S.C. 922(a)(1)(A) and 924(a)(1)(D).
Counts 2 through 10 charged him with making false statements with respect to
information required to be kept by licensed firearms sellers, in violation of 18
U.S.C. 924(a)(1)(A). More specifically, these latter counts alleged that each
time Sanchez filled out an ATF Form 4473, he knowingly gave a false
residence address. Sanchez pleaded not guilty to all counts.

At trial, the Government presented the above-described evidence regarding

Sanchez's purchase and resale of the handguns, including Sanchez's own signed
statement to the ATF. It also presented testimony aimed at showing that, at the
time he purchased the guns, Sanchez did not live at 236 N.W. 24th Avenue.

At the close of the Government's case, and again at the close of all the
evidence, Sanchez's attorney moved for a judgment of acquittal. As to Count 1,
Sanchez's counsel argued that the Government had failed to prove that Sanchez
had "willfully" engaged in the business of selling firearms without a license, as
required by 18 U.S.C. 924(a)(1)(D). More specifically, he argued that "there
is no evidence by which a jury could rationally conclude that Francisco
Sanchez was aware of the licensing requirements and that he sold these guns
with the specific intent of circumventing or somehow violating that known
legal duty." The district court denied Sanchez's motion as to Count 1, noting
that Sanchez's "surreptitious[ ]" use of a beeper suggested that "he knew he was
in an illegal business." The court similarly denied Sanchez's Rule 29 motion
with respect to Counts 2 through 10.

10

Then at the charge conference, the parties and the court again presented their
conflicting positions on the meaning of willfulness under 924(a)(1)(D). The
defense argued that

11 not sufficient if the government simply proves that this man knew of the
it's
generally unlawful nature of his conduct. The government must prove above and
beyond that that he knew about the licensing requirement and willfully violated that
provision.
12

The Government disagreed, asking the court to instruct that "the government is

not required to prove the defendant was aware of the licensing requirement."
The court ultimately rejected the defense's suggestion, concluding instead "the
government must show ... that in conducting his business [Sanchez] was aware
he was in an illegal business." Both parties conformed their closing arguments
to the district court's chosen "willfulness" definition.
13

In its jury instructions, the court described the elements of Count 1 as follows:

14 government must prove the following three essential elements beyond a

[T]he
reasonable doubt. One, that the defendant Sanchez engaged in the business of
dealing in firearms. Two, the defendant Sanchez was not then a federally licensed
firearms dealer. Three, the defendant Sanchez acted willfully.
15

(Emphasis added). The court then defined "willfully":

16 word "willfully" ... means that the act was committed voluntarily and purposely
The
with the specific intent to do something the law forbids. That is, with bad purpose
either to disobey or disregard the law. The government must prove beyond a
reasonable doubt that Sanchez was in the business of dealing in firearms and that he
was aware that his conduct was illegal and that he deliberately conducted the
business of dealing in firearms.
17

The jury convicted Sanchez on all counts. Sanchez was sentenced to thirtythree months' imprisonment and three years of supervised release on each
count, all sentences to run concurrently. Sanchez now appeals his convictions
and sentences, contending first that the district court erred in rejecting his
proposed jury instruction on the "willfully" scienter requirement of Count 1.
Sanchez also contests the admission of his signed statement, some aspects of
the Government's closing argument, and his sentence.

II.
18

We first address whether the district court erred in instructing the jury on the
"willfulness" element of the unlicensed sale of firearms offense charged in
Count 1, and conclude that the court did so err, and that the error requires
vacatur of Sanchez's conviction on Count 1.

19

As we have had occasion to note, "willfully" is a word of many meanings and

each usage of the word must be interpreted with reference to the statutory
context in which it appears. United States v. Phillips, 19 F.3d 1565, 1576 (11th
Cir.1994) (citing Ratzlaf v. United States, 510 U.S. 135, ----, 114 S.Ct. 655,
659, 126 L.Ed.2d 615 (1994)), cert. denied --- U.S. ----, 115 S.Ct. 1312, 131

L.Ed.2d 194 (1995); see also United States v. Obiechie, 38 F.3d 309, 313-14
(7th Cir.1994) (Ratzlaf requires court to construe "willfully" as used in 924(a)
(1)(D) with reference to its statutory context); United States v. Hayden, 64 F.3d
126, 132 n. 9 (3d Cir.1995) (same). Accordingly, we must first identify the
context in which the "willfully" requirement is used in the statutory provisions
under which Sanchez was charged in Count 1.
20

The word does not appear in 18 U.S.C. 922(a)(1)(A), the subsection which
directly prohibits any person other than a licensed dealer from dealing in
firearms. That subsection in fact contains no mens rea requirement. Instead,
924(a)(1)(D) supplies the applicable mens rea requirement for 922(a)(1)(A)'s
"dealing without a license" offense. While subsections 924(a)(1)(A) through
(C) require that certain violations of 922 and 924 be committed "knowingly,"
subsection 924(a)(1)(D) is a catch-all provision that specifies a different mens
rea for all other violations of the chapter: "Whoever ... willfully violates any
other provision of this chapter...." Because no other provision of 924(a)(1)
specifically applies to the violation of 922(a)(1)(A)--with which Sanchez is
charged--the "willfully" requirement of the catch-all 924(a)(1)(D) applies
here. Obiechie, 38 F.3d at 312; United States v. Collins, 957 F.2d 72, 74 (2d
Cir.), cert. denied 504 U.S. 944, 112 S.Ct. 2285, 119 L.Ed.2d 210 (1992).

21

Thus, the context within which subsection (D)'s "willfully" requirement must
be interpreted includes the other subsections--(A) through (C)--of 924(a)(1).
The Seventh Circuit interpreted subsection (D)'s willfully requirement in light
of these other subsections in Obiechie. Pointing out that subsections (A)
through (C) specify "knowingly" as the scienter requirement for the offenses to
which they apply, while only subsection (D) specifies "willfully", the court
reasoned that "knowingly" must therefore be contrasted with and shape the
meaning of "willfully." Then, further noting that the "knowingly" standard does
not require knowledge of the law, but only that the defendant intended to do the
act that is proscribed by law, the Obiechie court concluded that because
"willfully" must signify a higher mens rea standard than "knowingly," it must
necessarily require knowledge of the law. Obiechie, 38 F.3d at 315 (must mean
an "intentional violation of a known duty") (emphasis added); accord Hayden,
64 F.3d at 130 ("[I]t is difficult to understand what more the 'willfully'
language could require, if not knowledge of the law."); United States v. Hern,
926 F.2d 764, 767 (8th Cir.1991) (assuming that "willfully" in 924(a)(1)(D)
means "intentional violation of a known legal duty").

22

We agree with the reasoning and result in Obiechie.1 Accordingly, we too

conclude that in order for the Government to prove the offense of willfully
dealing in firearms without a license under 922(a)(1)(A) and 924(a)(1)(D), it

must prove that the defendant acted with knowledge of the licensing
requirement. In doing so, we do not ignore "the venerable principle that
ignorance of the law is no excuse," Ratzlaf, 510 U.S. at ----, 114 S.Ct. at 663,
but simply recognize that "Congress may decree otherwise," see id., and
conclude that it has done so in 924(a)(1)(D).2
23

In so holding, we wish to avoid raising more questions than we answer. Jury

confusion in applying various mens rea standards--particularly the appropriate
"willfulness" standard--may often reflect imprecision in appellate courts'
formulations of those standards which then are embodied in correspondingly
imprecise jury instructions. With that in mind, we will attempt concreteness
here. To prove a willful violation of 922(a)(1)(A), the Government must
prove that a defendant (1) knew that he was required to have a license in order
to deal in firearms, (2) knew that he did not have the requisite license, and (3)
nonetheless voluntarily, intentionally engaged in the business of dealing in
firearms, knowing that such conduct violated the licensing requirement.

24

There remains the question whether, though without this degree of precision,
the district court's instruction here sufficiently conveyed the essence of this
formulation of the willfulness requirement.

25

After listing the other elements of a 922(a)(1)(A) violation, the district court
defined "willfully" as follows:

26 word "willfully" ... means that the act was committed voluntarily and purposely
The
with the specific intent to do something the law forbids. That is, with bad purpose
either to disobey or disregard the law. The government must prove beyond a
reasonable doubt that Sanchez was in the business of dealing in firearms and that he
was aware that his conduct was illegal and that he deliberately conducted the
business of dealing in firearms.
27

Although much of this definition comes from some of this court's definitions of
"willfully" as it is used in other statutes, see, e.g., Phillips, 19 F.3d at 1577
("Willfully" can mean acting with "a 'bad purpose' to disobey or disregard the
law"), we conclude that it does not suffice as an instruction on the offense at
issue here. Critically, the instruction would have allowed the jury to convict
Sanchez without ever having concluded that he knew of the licensing
requirement. While the instruction does require proof that Sanchez knew "his
conduct was illegal," this is not enough. Knowledge of the general illegality of
one's conduct is not the same as knowledge that one is violating a specific rule-here, the prohibition against unlicensed dealing in firearms.3 See Adames, 878
F.2d at 1377 (defendant's awareness of generally unlawful nature of her actions

cannot sustain finding of specific intent). Accordingly, we conclude that the

instruction did not communicate the correct understanding of 924(a)(1)(D)'s
scienter requirement. By permitting the jury to convict Sanchez without finding
the required form of willfulness in his conduct, it necessarily prejudiced his
defense so that vacatur of his conviction and remand for a new trial is required
as to Count 1.4 See Ratzlaf, 510 U.S. at ----, 114 S.Ct. at 663.III.
28

Sanchez also argues that his conviction on Count 1 should be vacated because
the Government based its proof that he sold any guns at all entirely on his own
confession, which, he claims, was not corroborated by any other evidence. In
view of our vacatur and remand of this count on other grounds for a new trial in
which additional evidence may be presented, we will not address this
assignment of error.

IV.
29

Sanchez also claims that certain of the Government's statements in its rebuttal
closing argument violated his due process and rule-based rights and,
accordingly, require a reversal of his convictions on all counts. First, he claims
that the Government grossly distorted the facts in evidence. Second, he
contends that the Government's rebuttal closing violated Fed.R.Crim.P. 29.1
because it did not merely respond to the defense's closing, but introduced a new
theory of the case. We have carefully reviewed the challenged portions of the
Government's rebuttal closing and find no merit in these claims of error. The
prosecutor was well within the bounds of propriety in arguing to the jury that
the most reasonable inference from the evidence of Sanchez's impecunious state
was that prospective purchasers from him were fronting the money for his gun
purchases, at odds with his statement to Government agents that he financed the
purchases without any prior arrangements for resale. The argument was a
proper attack on the credibility of Sanchez's contrary account to the agents. Nor
was there any violation of Rule 29.1, which confines the scope of any argument
by the Government in reply to defense closing argument to that which does
"rebut." Sanchez's contention is that the Government's rebuttal closing which
raised for the first time the "fronted-purchases" argument violated this scope
restriction. But it did not, being properly responsive to defense counsel's closing
argument that Sanchez was unaware of any illegality in what he was doing. See
United States v. Sarmiento, 744 F.2d 755, 765 (11th Cir.1984) (Rule 29.1 does
not prevent the introduction of new theories in rebuttal so long as they are
responsive to defense closing).

V.
30

Finally, Sanchez contests the district court's failure to reduce his offense level

30

Finally, Sanchez contests the district court's failure to reduce his offense level
by two points for "acceptance of responsibility" under U.S.S.G. 3E1.1.
Because we have vacated Sanchez's conviction on Count 1, we will consider
his sentencing arguments only as they relate to his convictions for making false
statements on ATF forms, Counts 2 through 10.

31

"The district court's determination of whether a defendant is entitled to a

reduction for acceptance of responsibility is a finding of fact that is entitled to
great deference on appeal and will not be disturbed unless clearly erroneous."
United States v. Kendrick, 22 F.3d 1066, 1068 (11th Cir.1994); United States
v. Chukwura, 5 F.3d 1420, 1424 (11th Cir.1993), cert. denied --- U.S. ----, 115
S.Ct. 102, 130 L.Ed.2d 51 (1994); see U.S.S.G. 3E1.1 app. note 5 ("The
sentencing judge is in a unique position to evaluate a defendant's acceptance of
responsibility"). Because we find no clear error here, we affirm the district
court's denial of the 3E1.1 reduction.

32

In explaining his denial of Sanchez's requested reduction, the district court

noted "I went over the objections [to the PSI], and I agree with the Government
that the defendant is not entitled" to the 3E1.1 reduction. We interpret this
statement as an adoption of the Government's reasoning in its Response in
Opposition to Defendant's Objections to the Presentence Report (Response),
which was filed on the day of the sentencing hearing. In the Response, the
Government pointed out that Sanchez had not, in his signed statement or
otherwise, admitted that he knew he was acting illegally. Instead, Sanchez had
"put the government to its burden of proof at trial" by contesting the crucial
factual element of his intent as to all charges. See 3E1.1 app. note 2 ("This
adjustment is not intended to apply to a defendant who puts the government to
its burden of proof at trial by denying the essential factual elements of guilt....")
Indeed, Sanchez maintained throughout the trial that he had never intentionally
lied on the 4473 Forms, but that his use of a "residence address" where he no
longer lived was due to the form's vagueness. Thus, the Government concluded
that Sanchez's statement to the ATF and his arguments at trial were inconsistent
with acceptance of responsibility.

33

The district court implicitly adopted this reasoning in denying Sanchez's

requested reduction for acceptance of responsibility. Because we cannot say
that this was clear error, we affirm Sanchez's sentence as to Counts 2 through
10.

VI.
34

Having found that the district court's erroneous instruction as to the

"willfulness" element of 922(a)(1)(A) constituted reversible error, we vacate

Sanchez's conviction and sentence on Count 1 and remand that count for a new
trial. We affirm his convictions and sentences on all other counts.
35

AFFIRMED in part; VACATED and REMANDED in part FOR NEW TRIAL.

Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit Judge for the Fourth
Circuit, sitting by designation

In agreeing with the Seventh Circuit, we necessarily disagree with the Second
Circuit's contrary interpretation of 924(a)(1)(D) in Collins. In Collins, the
Second Circuit, without noting the "willfully" requirement's statutory context,
looked straight to the statute's legislative history to guide its interpretation.
Based on its reading of the legislative history, the Second Circuit concluded
that the willfulness requirement did not contemplate knowledge of the law, but
required the Government to prove only that "the defendant intended to commit
an act which the law forbids." Collins, 957 F.2d at 76. This analysis ignores the
effect of Congress's use of "knowingly" in the adjacent subsections of the
statute on the meaning of "willfully" in 924(a)(1)(D), a point that, as did the
Obiechie court, we think is critical to a proper interpretation

Although we re-emphasize that the meaning of "willfully" always must be

ascertained with reference to the specific statutory language in which it appears,
we note that our understanding of that term as it is used in 924(a)(1)(D) is
consistent with our understanding of how "willfully" is used in other statutes.
See, e.g., United States v. Macko, 994 F.2d 1526, 1532-33 (11th Cir.1993)
("willfully" in Trading with the Enemy Act requires proof that defendants knew
of and intentionally violated embargo); United States v. Adames, 878 F.2d
1374, 1377 (11th Cir.1989); United States v. Frade, 709 F.2d 1387, 1391 (11th
Cir.1983) (" '[W]illfully' ... generally connotes a voluntary, intentional violation
of a known legal duty.")

For example, a seller may know that his dealing in firearms is illegal because
he is a convicted felon and, as such, may not even possess a firearm. See 18
U.S.C. 922(g)(1) (Supp.1996). However, such a seller--if he did not also
know that he was required to have a license to conduct his firearms business-would not be guilty of a willful violation of 922(a)(1)(A), even though he was
aware that his firearms dealings were illegal

Sanchez sought reversal and dismissal of this count for insufficiency of the
evidence to convict him under a proper application of 922(a)(1)(A) or, "at

least, for a new trial." Remand for a new trial is the appropriate remedy where,
as here, the insufficiency of evidence is accompanied by trial court error whose
effect may have been to deprive the Government of an opportunity or incentive
to present evidence that might have supplied the deficiency. See Lockhart v.
Nelson, 488 U.S. 33, 42, 109 S.Ct. 285, 291-292, 102 L.Ed.2d 265 (1988)
(remand for new trial proper where erroneous admission of evidence may have
deterred Government from presenting other evidence that could have supplied
deficiency); United States v. Weems, 49 F.3d 528 (9th Cir.1995) (remand for
new trial where erroneous jury instructions made missing evidence not
apparently necessary); United States v. Wacker, 72 F.3d 1453 (10th Cir.1995)
(same)
Such situations are different from those in which the insufficiency of evidence
is inexplicable for any reason other than that it was not available or that, if
available, it was not produced by the Government. In the latter situations, the
Double Jeopardy Clause requires dismissal to protect against the Government
oppression that would result from allowing a "second bite" when the first bite
was a full and fair one. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57
L.Ed.2d 1 (1978).